Is It Time to File a Provisional Application for Patent?

Learn what you need to know before plunking down your dough for a provisional patent and when to file one.

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Heleigh Bostwick
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Heleigh Bostwick

Heleigh Bostwick has been writing for LegalZoom since 2006, touching on topics as diverse as estate planning and kids, copyright laws and school performances, celebrity trademarks, myths of starting a business, and plant patents. Heleigh has a degree in botany from Connecticut College, a master of landscape architecture from the University of Pennsylvania, and a certificate in appraisal studies of fine & decorative arts from New York University. Prior to becoming a freelance writer, she had several careers including jewelry cataloguer for a New York City auction house, environmental scientist, and landscape designer—all of which contribute to her knowledgebase as a writer. Because of her expertise in environmental regulatory analysis, she is adept at translating complex information into user-friendly content, a useful skill when it comes to writing about patent and trademark law.Heleigh enjoys writing because it offers the opportunity to conduct research, interview people, keep up on the latest technologies, and write about what she's learned.
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Don Smith
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Don Smith

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Updated on: July 31, 2025
Read time: 3 min

Inventors are often faced with a dilemma. Think about it. Say you've invented something that the world has never seen--something so revolutionary that you just know it's going to become a huge success. As you think to yourself, "There's money to be made here," you also realize that your invention needs a little real-world testing, and to do that, you need to find a potential manufacturer. But what if the manufacturer steals your idea? How do you protect yourself from being ripped off?

For many inventors, the answer lies in filing a provisional patent application. If you've ever heard the term "patent pending", then you've heard of provisional applications. The flip side, however, is that a provisional application is not always necessary. What do you need to know before spending your time and money?

A woman wearing earbuds holds her cell phone while sitting in a cafe with a cup of coffee and working on her laptop computer.

Why provisional applications are a good idea

  1. A provisional patent application offers a simplified and much lower-cost option than filing a nonprovisional utility patent application right out of the gate. All you need is a cover sheet, a detailed description of the invention explaining how it is made and how it is used—including drawings if necessary to understand the invention—the name(s) of the inventors, and the filing fee.
  2. A provisional patent application, which is good for a period of 12 months, allows you to label your invention "patent pending" for the entire provisional period and gives you that time to begin seeking funding or doing market research. Also, "patent pending" puts anyone who might try to copy your invention on notice that you may receive a patent on that invention and that they would then be liable for infringing your patent starting the day you file your provisional application.
  3. If you file a nonprovisional patent application within the 12-month provisional period, you can claim the priority date of the provisional application as the filing date of your patent. This assumes particular importance in instances where others have applied for patents on similar inventions. It also extends the life of your regular patent from 20 to 21 years, since a regular utility patent is good for 20 years from the date of its filing.

What to keep in mind

  1. You should not think a provisional application automatically becomes a full, regular patent grant--because it doesn't. For you to receive full patent protection for your invention, you will have to file a nonprovisional utility patent application, either within 12 months of your provisional application (to take advantage of the early filing date) or anytime you want—you can file a nonprovisional application right off the bat if you're ready. You can also let your provisional application expire and re-file either another provisional application (getting you another 12 months of “patent pending” status) or a nonprovisional utility patent application. In other words, you have lots of options.
  2. In most cases, filing a hastily put-together provisional application is not recommended. The wording may be quite vague in these applications, and possibly the invention is not well thought out. Filing an application with insufficient or incorrect details can lose you the priority filing date afforded by your provisional application. Also, if you want to receive that early filing date, the invention described in your provisional application will have to match fairly closely the invention contained in your corresponding nonprovisional application—practically, this means that the examiner in charge of your file will have to be able to recognize the inventions as the same.
  3. Provisional applications do not cover design patents. When your invention covers the appearance of a functional object rather than the function of the object itself, you may qualify for a design patent. Again, provisional applications for design patents are not allowed or accepted.

For many, a provisional patent application is the best way to start protecting an invention. So, are you ready to get started?

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This article is for informational purposes. This content is not legal advice, it is the expression of the author and has not been evaluated by LegalZoom for accuracy or changes in the law.